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44. Despite these standards, the Special Rapporteur has received numerous reports that in
certain cases detention can become prolonged and the detainees subject to ill-treatment. In
certain cases irregular migrants have been denied the right to communication, have been subject
to physical or sexual assault, have been mixed with detainees charged with criminal offences,
and often suffer from a lack of attention to the specific needs of children, women,
asylum-seekers and other vulnerable groups.34
45. There seem to be enormous differences between immigration regulations among States,
making oversight of detention conditions and States’ adherence to international standards in this
practice a challenge.35 Some States entirely lack a legal regime governing immigration and
asylum procedures that, when in place, can help to manage detention practices. Others have
enacted immigration laws but often they do not provide for a legal framework for detention.
Some States have legislation which provides for a maximum period of detention, whereas others
are lacking such a time limit.
46. Some national laws do not provide for judicial review of administrative detention of
migrants. In other instances, the judicial review of administrative detention is initiated only upon
request of the migrant. In these cases, lack of awareness of the right to appeal, lack of awareness
of the grounds for detention, difficult access to relevant files, lack of access to free legal counsel,
lack of interpreters and translation services, and a general absence of information in a language
detainees can understand on the right to instruct and retain counsel and the situation of the
facilities where they are being held can prevent migrants from exercising their rights in practice.
In the absence of lawyers and/or interpreters, migrants can often feel intimidated and obliged to
sign papers without understanding their content.
47. Migrants and asylum-seekers are sometimes detained at airport transit zones and other
points of entry, under no clear authority, either with the knowledge of government officials at the
airport or simply on the instructions of airline companies before being returned to their countries.
The difficulty or impossibility of reaching any outside assistance impedes the exercise of the
right of the persons concerned to challenge the lawfulness of the State’s decision to be detained
and returned and to apply for asylum, even in the presence of legitimate claims. In practice, some
States misleadingly label migrant detention centres as “transit centres” or “guest houses” and
“detention” as “retention” in the absence of legislation authorizing deprivation of liberty.
48. Often the legislative criteria of a given State allow for a high degree of discretion in
ordering administrative detention: foreign nationals can be detained when immigration officers
have “reasonable” grounds to believe that the person is inadmissible, is a danger to the public,
34
Numerous international standards with regard to detention can be found in, inter alia, the
ICCPR, CMW, the Vienna Convention on Consular Relations, the Convention on the Rights of
the Child. See Amnesty International, “Migration-related detention: a research guide on human
rights standards relevant to the detention of migrants, asylum-seekers and refugees”,
November 2007.
35
See the various reports to the Commission on Human Rights of the Working Group on
Arbitrary Detention (www2.ohchr.org/english/issues/detention/annual.htm).
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